The Practical and Theoretical Problems with ‘Balancing’
| Published date | 01 June 2016 |
| DOI | 10.1177/1023263X1602300304 |
| Date | 01 June 2016 |
| Subject Matter | Article |
23 MJ 3 (2016) 439
THE PRACTICAL AND THEORETICAL
PROBLEMS WITH ‘BALANCING’
Del , Coty and the Redundancy
of the Human Rights Framework
B S*
ABSTRACT:
In the realm of privacy and data protection – as in the fundamental rights framework in
general – balancing has become the standard approach for dealing with legal disputes. It
comes, however, with a number of practical and theoretical problems. is article analyses
those problems and compares the method of balancing with the original approach of most
human rights frameworks, such as the European Convention on Human Rights. It does so
by analysing two cases in detail: the European C ourt of Human Right’s case Del v. E ston ia
and the Court of Justice of the EU’s judgment Coty v. Stadtsparkasse. From this analysis, it
follows that the concept of balancing signa ls a shi away from the deontological and towards
a utilitarian understanding of fundamental r ights. is is not only of theoretical importance,
as it co ul d al so me an th a t i n t im e, hu ma n r i gh ts fr am e wo rk s a s su ch mi gh t b ec om e re du nd an t.
Keywords: balanc ing; consequentialism; data protection; privacy; ut ilitarianism
§1. INTRODUCTION
Balancing is cu rrently one of the standard ways th rough which to determine the outcome
of a case. e concept is so omnipresent that some authors have even stressed that we
live in an ‘age of balancing’.
1 Certainly, under the European Convention on Human
Rights (ECHR), weighing one rig ht or interest against the other seems to be the st andard
approach for dealing with complai nts.
* Researcher at the I nstitute for Informat ion Law, University of Amsterdam.
1 T.A. Alei nik o , ‘Constitutiona l Law in the Age of Balanc ing’, 96 e Yale Law Journ al (1987) .
Bart van der S loot
440 23 MJ 3 (2016)
Establishi ng that the mea sure is necessa ry in a democr atic societ y involves showing t hat the action
taken is in resp onse to a pressing social need , and that the interference wit h the rights protected
is no greater than is necessary to address that pressing social need. e latter requirement is
refe rred to as the t est o f prop ort iona lit y. is test requires t he Court to balanc e the severityofthe
restriction pl aced on the individua l against the impor tance of the public interest.
2
Similarly, when the rights of two individuals clash – such as the right to identity and
reputation (Article8 ECHR) and the right to freedom of expression (Article10 ECHR),
the European Court of Human Rights (ECtHR) balances the two rights against each
other to determine the outcome of the matter. is is also the case in the realm of data
protection, where the interests of the data subject c an be balanced again st, for example, the
commercial interests of a business i n processing the data for personali zed advertising. is
special issue contains a number of contributions on the role of balancing in privacy and
data protection regulation and case law. is contribution fundamentally problematizes
the very notion of balanci ng on a number of both practical and theoretica l points.
A. BEFORE ‘BALANCING’ BECA ME FASHIONABLE: THE ‘ORIGINAL’
NECESSITY TE ST IN THE ECHR
Despite its increased importance in the ECtHR’s case law, the idea of balancing is not
as such contained in the ECHR and seems not to have been envisaged by the authors of
the Convention.3 Rather, the Convention rst a nd foremost provides minimum r ules for
the conduct of state parties to the Convention (referred to in this contribution simply as
‘states’). e focus is on duties (of care) for states, rather than individual and subjective
rights. For example, the respec t for life, except in respect of death s resulting from lawf ul
acts of war (Article2 ECHR), the comma ndment that no one shall be subjected to torture
or to inhuman or degrading treatment or punishment (Article3 ECHR), the rule that no
one shall be held in slavery or servitude (Article4) and the prohibition on retrospective
legislation (Article7 ECHR), are principles which may never be violated by states , not even
states need to abide by; if they do not, for example by adopting retrospective legislation,
individual rig hts have not been interfered with per se, but the state is in abus e of its powers.
2 C. Ovey and R.C.A. White, European Convention on Human Rights (Oxford University Press, 2002),
p.209.
3 A.H. Robertson, Collected edition of th e ‘travaux préparatoires’ of the Europe an Convention on Human
Rights – Recuei l des travaux préparatoires de la Conve ntion Européenne des Droits de l ’Homme. Vols.
1–6 (Nijho , 1975). See for more detail ab out the interpretat ion of the Travaux Préparatoires on i n
point: B. van der Slo ot, ‘How to assess privacy violat ions in the age of Big Data? Analysin g the three
di erent tes ts developed by the ECtHR and a dding for a fourth one’, 1 Informat ion & Communication
Tec hno log y La w(2015).
4 Besides the prohibit ion of retrospect ive legislation, t he Convention lays down rules on fair trial
the right to an e ect ive remedy (Article13 ECHR).
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